A momentous legal victory for environmental activism and free speech
February 10, 2021
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Today, environmental attorneys and community activists will be defending a defamation matter known as a SLAPP suit where damages amounting to a total amount of R14,25 million is being claimed by controversial Australian mining company, Mineral Resources Commodities (MRC) and its local subsidiary, MSR. The mining company, its CEO Mark Caruso and local director, Zamile Qunya, are suing the defendants over alleged defamatory statements made in relation to its current Tormin operations on the West Coast, and its proposed Xolobeni operations in the Wild Coast region of the Eastern Cape.
For the first time in South Africa’s legal history, the concept of SLAPP (Strategic Litigation against Public Participation) is being referred to in legal argument, which states that the defamation proceedings are an abuse of court process and should not be permitted since it is aimed at silencing public criticism regarding environmental issues. The defendants submit in written argument, that the SLAPP suit brought by the mining company is being brought for the ulterior purpose of discouraging, censoring, intimidating and silencing the defendants, members of civil society, the general public and the media in relation to public criticism of the company.
“SLAPP suits are used by corporations here and around the world, to intimidate activists, in particular, environmental defenders who challenge corporations over the impacts of mining and other destructive activities. Such tactics undermine our constitutional democracy, the right to freedom of expression, including academic freedom, pose a threat to the robust and healthy civil society movement in South Africa. South African courts are upholding our constitution and ensuring state and private sector accountability should not be used in this manner. Their processes should not be abused by well-resourced corporations whose sole objective is to stifle criticism and draw activists, human rights and environmental defenders into lengthy litigation, that is both financially and emotionally distressing” said Leanne Govindsamy, Head of CER’s Corporate Accountability and Transparency programme.
At this stage of the legal proceedings, Deputy Judge Patricia Goliath will be deciding on what is known as an exception to the special plea brought by the defendants. The mining company has contended that the special pleas raised by the defendants do not give rise to a defence in our law. The defendants in response contend that the exceptions should be dismissed, either on the basis of existing common law or the common law as developed.
In this regard, the defendants’ legal counsel state in their written argument for the hearing, that “it is quite impermissible for the mining companies to bring these proceedings in circumstances where they know that they will never have any realistic prospect of recovering the damages they seek and where their purpose is to intimidate and silence public criticism by the named defendants, civil society, the public and the media“.
The Centre for Applied Legal Studies and the University of Cape Town are admitted as amicus curiae (friends of the court) in this matter and have raised critical issues relating to freedom of expression, including academic freedom.
Last year, the CER together with civil society and community organisations, launched an “anti-SLAPP” campaign. Called Asina Loyiko: Standing Together Against Corporate Bullying, the campaign raises awareness about SLAPP suits, prevents and discourages companies in South Africa and globally from using this tool to silence and intimidate activists. Companies which operate in South Africa must adhere to the constitution and other South African laws and regulations and their abuse of court and other processes will not be tolerated and will continue to be exposed!
As an organisation dedicated to assisting communities and civil society organisations in South Africa realise our Constitutional right to a healthy environment by advocating and litigating for environmental justice, such threats cannot be tolerated. Asina Loyiko – “we have no fear” – is the message we are sending to extractive industries and other corporates using this tactic to suppress public activism.
SLAPP suits – Strategic Litigation Against Public Participation – are litigation (or threats of litigation) in the form of defamation suits, have a chilling effect on the rights and ability of people to participate in public debate and political protest. SLAPP suits are increasingly used by corporations in South Africa and in other parts of the world, to silence criticism and suppress public activism. These SLAPPs undermine Constitutional rights of freedom of speech, freedom of the media, and academic freedom.
Access the court papers: https://cer.org.za/programmes/corporate-accountability/litigation
Follow the campaign on Twitter: @AsinaLoyiko